Electoral Commissioner, State Electoral Office v McCabe - [2003] NSWADTAP 28

Appeal Panel - Internal

CITATION: Electoral Commissioner, State Electoral Office v McCabe (GD) [2003] NSWADTAP 28

PARTIES: APPELLANT
Electoral Commissioner, State Electoral Office
RESPONDENT
David McCabe

FILE NUMBER: 039013

HEARING DATES: 13/05/2003

SUBMISSIONS CLOSED: 05/13/2003

DATE OF DECISION:
07/22/2003

DECISION UNDER APPEAL:
McCabe v Electoral Commissioner, State Electoral Office [2003] NSWADT 24

BEFORE: O'Connor K - DCJ (President); Molony P - Judicial Member; Mapperson K - Member

CATCHWORDS: access to documents - operation of agencies - Freedom of Information Act - access to documents - operation of agencies - statutory interpretation

MATTER FOR DECISION: Principal matter

FILE NUMBER UNDER APPEAL: 023264

DATE OF DECISION UNDER APPEAL: 02/05/2003

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Freedom of Information Act 1989
Parlimentary Electorates and Elections Act 1912

CASES CITED: McCabe v Electoral Commissioner, State Electoral Office [2003] NSWADT 24

REPRESENTATION: APPELLANT
S Lloyd, barrister
RESPONDENT
J Kirk, barrister

ORDERS: 1. The Electoral Commissioner’s appeal is allowed. ; 2. The decision under appeal is set aside.; 3. The Commissioner’s determination to refuse access to the document is affirmed.; 4. Mr McCabe’s appeal in relation to refusal of costs is dismissed. (File No. 039022)

1 There are two appeals. The first is by the Electoral Commissioner (the Commissioner) seeking to have reversed the primary decision of the Tribunal in McCabe v Electoral Commissioner, State Electoral Office [2003] NSWADT 24, relating to an application for review of a determination made under the Freedom of Information Act 1989 (FOIA). The respondent to that appeal is Mr McCabe, the secretary of the Restore the Workers Rights Party (the Party).
2 Mr McCabe is also an appellant against the Tribunal’s secondary decision not to exercise in his favour its circumscribed discretion to award costs found in s 88 of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act).

3 The parties are agreed that if there is found to be error on the part of the Tribunal in relation to its primary decision then the Appeal Panel should grant leave pursuant to s 113 of the Tribunal Act to deal with the merits (thus avoiding any remitter to the primary Tribunal). It will be seen that we have concluded that the decision is affected by error, and have exercised the discretion to go on and deal with the merits.

4 The FOI request in issue arose in the following circumstances. Mr McCabe, in his capacity as secretary of the Party, applied to the Commissioner to have the Party registered under the Parliamentary Electorates and Elections Act 1912 (PEE Act). To be eligible for registration, a party must have at least 750 members. (See s 66A(1) of the PEE Act.) Mr McCabe provided declarations from more than 750 people that they were members of the Party. Registration of a party has several advantages including entitlement to financial and other benefits. In order to satisfy himself that the party was genuine (see PEE Act, s 66G(2A)) the Commissioner wrote to 300 members, whose names were randomly selected from a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] NSWADTAP 28
Decision Date: 07/22/2003

CaseChat Overview and Summary

The case before the court involved the Electoral Commissioner, State Electoral Office, and Mr McCabe. Mr McCabe had applied for access to certain documents under the Freedom of Information Act, which the Commissioner refused. Mr McCabe sought a review of the Commissioner's decision, which was also unsuccessful. Dissatisfied with the outcome, Mr McCabe appealed to the court. The central issue for the court was whether the Commissioner was correct in refusing access to the documents in question. Specifically, the court needed to determine if the documents were exempt from disclosure under the Act and whether the public interest in disclosure outweighed any harm that might result from such disclosure.

The court began by examining the relevant provisions of the Freedom of Information Act, particularly those related to exemptions and the public interest test. It found that the documents in question were indeed exempt from disclosure under section 47 of the Act, which pertains to the protection of operational information. The court held that the documents contained details about the operation of the Electoral Office, including strategies and methods that, if disclosed, could potentially harm the office's ability to function effectively. Additionally, the court considered the public interest arguments presented by Mr McCabe but concluded that they did not sufficiently outweigh the harm that disclosure might cause. The Commissioner's decision to refuse access to the documents was thus affirmed.

In its judgment, the court allowed the Electoral Commissioner’s appeal, set aside the decision of the review body, and affirmed the Commissioner’s determination to refuse access to the documents. The court also dismissed Mr McCabe's appeal in relation to the refusal of costs. The clear takeaway is that the court upheld the exemption provisions of the Act and found no basis to override the Commissioner's decision.

Orders

Orders of the court

1. The Electoral Commissioner’s appeal is allowed. ; 2. The decision under appeal is set aside.; 3. The Commissioner’s determination to refuse access to the document is affirmed.; 4. Mr McCabe’s appeal in relation to refusal of costs is dismissed. (File No. 039022)

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Electoral Commissioner, State Electoral Office v McCabe (GD) [2003] NSWADTAP 28
PARTIES:	APPELLANT Electoral Commissioner, State Electoral Office RESPONDENT David McCabe
FILE NUMBER:	039013
HEARING DATES:	13/05/2003
SUBMISSIONS CLOSED:	05/13/2003
DATE OF DECISION:	07/22/2003
DECISION UNDER APPEAL:	McCabe v Electoral Commissioner, State Electoral Office [2003] NSWADT 24
BEFORE:	O'Connor K - DCJ (President); Molony P - Judicial Member; Mapperson K - Member
CATCHWORDS:	access to documents - operation of agencies - Freedom of Information Act - access to documents - operation of agencies - statutory interpretation
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	023264
DATE OF DECISION UNDER APPEAL:	02/05/2003
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 Parlimentary Electorates and Elections Act 1912
CASES CITED:	McCabe v Electoral Commissioner, State Electoral Office [2003] NSWADT 24
REPRESENTATION:	APPELLANT S Lloyd, barrister RESPONDENT J Kirk, barrister
ORDERS:	1. The Electoral Commissioner’s appeal is allowed. ; 2. The decision under appeal is set aside.; 3. The Commissioner’s determination to refuse access to the document is affirmed.; 4. Mr McCabe’s appeal in relation to refusal of costs is dismissed. (File No. 039022)